An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

(1) In the first line of the PROCEDURAL BACKGROUND section, the date "May 4" is modified to "May 24" in order to correct an error.

(2) The final sentence of the first paragraph of the PROCEDURAL BACKGROUND section is deleted.

(3) Any reference to "FINDINGS OF PROBABLE FACT" is modified to "FINDINGS OF FACT."

(4) In the quoted language which appears as part of numbered paragraph 55. in the FINDINGS OF FACT section, the number "120" is modified to "12," in order to correct an error.

(5) Numbered paragraph 2. of the CONCLUSIONS OF LAW section is deleted and the following substituted:

The complainant failed to sustain her burden to show that probable cause exists to believe that the respondent retaliated against her for engaging in a protected Wisconsin Wage Payment and Collection Act activity when she was separated from her employment.

(6) Numbered paragraph 3. of the CONCLUSION OF LAW section is deleted and the following substituted:

The complainant failed to sustain her burden to show that probable cause exists to believe that the respondent discriminated against her on the basis of pregnancy, childbirth, maternity leave, or related medical conditions in regard to certain terms and conditions of her employment

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed December 8, 2006smithla . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission first notes that the complainant has failed to specify the basis for her appeal of the administrative law judge's decision. Despite this, the commission has conducted a thorough review of the file and the record in this matter.

Issues for resolution

The issues investigated by the Equal Rights Division (ERD), and noticed for hearing, are:

(1) Whether there is probable cause to believe that the respondent discharged the complainant in retaliation for engaging in a protected Wisconsin Wage Payment and Collection Act activity.

(2) Whether there is probable cause to believe that the respondent discriminated against the complainant in the terms or conditions of her employment because of pregnancy, childbirth, maternity leave, or related medical conditions.

The administrative law judge's decision exceeds the scope of these issues. In particular, the ALJ makes findings in regard to, and resolves, the issues of whether the complainant's separation resulted from pregnancy discrimination, and whether the complainant was retaliated against in regard to certain terms and conditions of her employment. No authority exists, however, for making findings, or rendering a decision, in regard to issues which have not been investigated by ERD, or noticed for hearing.
See, Hanson v. State of Wisconsin DOT, ERD Case Nos. 200303172, etc. (LIRC June 14, 2005);
Haynes v. National School Bus Service, Inc., ERD Case No. 8751901 (LIRC Jan. 31, 1992);
Yarie v. The Pumphouse, et al., ERD Case No. 8901753 (LIRC Sept. 14, 1990). Moreover, the fact that evidence material to these issues became a part of the hearing record does not change this result,
i.e., the concept of conforming the pleadings to the proof is not applicable in Wisconsin Fair Employment Act administrative proceedings.
See, Hanson v. Wisconsin Department of Transportation, ERD Case Nos. 200303172,
etc. (LIRC June 14, 2005).

In her original charge, the complainant alleged only retaliation for engaging in a protected Wisconsin Wage Payment and Collection Act activity, and, in the narrative included as a part of her charge, after providing certain background information, linked this retaliation allegation to her separation. As is apparent from the file in this matter, the assigned equal rights investigator reasonably concluded from the language of her charge that the complainant was alleging only that she had been discharged for engaging in a protected wage claim activity.

However, according to the file, after the investigation had commenced and the investigator had an opportunity to communicate with the complainant, he concluded, as evidenced in a letter he directed to her on July 16, 2004, that she also wanted to charge that she had been discriminated against on the basis of pregnancy when her request for a light duty assignment had been denied. The investigator, as a result, enclosed a complaint form with his July 16 letter and suggested that the complainant "check the box indicated in the form for 'pregnancy/maternity'." The complainant did so and this amendment was received by ERD on July 23, 2004. The language of this amendment was identical to that of the original charge except that the pregnancy discrimination box was now checked. The complainant's obvious purpose in filing this amendment was to adopt the investigator's suggestion and add the pregnancy/light duty allegation to her charge.

Only these two issues, retaliatory separation and discriminatory denial of light duty, were addressed in the initial determination, and noticed for hearing. At no time has the complainant specifically stated an objection to these investigated/noticed issues. In view of all of the circumstances present here, expansion of the scope of the cognizable issues is not merited, and the administrative law judge's decision has been modified to accord with the issues noticed for hearing.

Retaliation issue

Borlik, the respondent's secretary/scheduler, accurately reported to Retzlaff, the respondent's human resources representative, that the complainant had failed to report back to work after an extended medical leave and had incurred three consecutive unreported absences. After several unsuccessful attempts to contact the complainant, Retzlaff made the decision that the respondent's employment relationship with the complainant would be severed.

In a retaliation case such as the one under consideration here, the respondent's motivation is the ultimate issue.
See, Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996). In order to establish a
prima facie case of retaliation, the complainant must show (1) she opposed an unlawful employment practice, (2) she suffered an adverse employment action, and (3) there was a causal connection between the opposition and the adverse action.
Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999). The respondent can rebut the
prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the complainant can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct.
Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).

In order to establish a causal connection, it must be shown that the alleged retaliator was aware, or had reason to be aware, of the complainant's protected activity.
See, Froh v. Briggs & Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004). Here, the record does not show that Retzlaff, who was hired in December of 2003, and who made the separation decision in February of 2004, would have had any reason to be aware of the wage claims the complainant filed in August and September of 2003.

The complainant failed to sustain her burden to show probable cause to believe that she was retaliated against when her employment relationship with the respondent ended.

Discrimination issue

The terms and conditions of employment alleged by the complainant to be discriminatory include the respondent's denial of her request for light duty work.

The record shows that, when the employee, at her request, began working on the day shift, she, like all other certified nursing assistants hired after 1994, was required to float to floors other than the one to which she was primarily assigned in order to meet staffing and workload requirements. The record does not show, as the complainant alleges, that, after the respondent learned she was pregnant, when she was required on occasion to float to the third floor, she was assigned to care for certain more difficult residents. The record shows instead that the complainant continued to care for a mix of residents, as the other CNA's did, and as the complainant had before she disclosed her pregnancy to the respondent.

The complainant, prior to October of 2003, did not submit any medically documented work restrictions to the respondent, or specifically request a light duty assignment. In October of 2003, as the result of work restrictions imposed by her physician, the complainant requested a medical leave, not a light duty assignment. The respondent granted this medical leave.

The complainant has failed to show that she was assigned to care for more difficult residents than she had prior to the disclosure of her pregnancy, or than other CNA's were assigned; and has failed to show that she ever requested and was denied a light duty assignment.

The complainant failed to sustain her burden to show probable cause to believe that she was discriminated against in regard to the terms and conditions of her employment as alleged.